Judging a Justice by the company her campaign contributors keep

January 25, 2011by Steven Gursten

Michigan Supreme Court Justice Mary Beth Kelly’s major contributors also backed a justice known for ruling against personal injury victims and attorneys

I’ve been asked to speak at two upcoming seminars on a topic that is much on the mind of many of Michigan’s personal injury attorneys: How is the Michigan Supreme Court’s newest Justice, Mary Beth Kelly, going to rule in personal injury cases?

Sadly, this is where politics rears its very ugly head. And it’s also why Michigan desperately needs to change how it runs judicial elections.

Justice Kelly received the most votes of all judicial candidates in the November election. Political observers have noted that the combination of her name and gender apparently were the two biggest reasons as to why she received the most votes of all the judicial candidates. Jack Lessenberry wondered aloud in his blog (and on NPR) about the GOP’s cynical decision to recruit and nominate judicial candidates named Kelly due to the voter popularity of the name. Jack wonders whether someday soon the entire Michigan Supreme Court may all share the last name “Kelly.”

Michigan citizens are poorly served by this, and both parties should not be running around trying to find candidates named “Kelly” to run in two years. I add my own voice to those calling for a major change in Michigan Supreme Court elections.

Very little is known about Justice Kelly and her beliefs on personal injury law. As a former Third Circuit Court (Detroit, Wayne County) judge for 11 years, Kelly left almost no paper trail to scrutinize because, unlike Supreme Court justices and appellate judges, there are almost no written opinions on personal injury cases. Judge Kelly also did not handle a civil (ie personal injury law) trial docket when she was a Wayne County judge.

So, if we have to be cynical about these things, what other clues are there as to how she will rule on auto accident cases, No-Fault insurance, and other important personal injury law matters that will surely come before the Michigan Supreme Court?

Justice Kelly was appointed by Governor Engler. Most legal scholars, lawyers, and judges will agree that his picks to the Michigan Supreme Court were based more on passing a political litmus test. The University of Chicago Law Review ranked the Engler Michigan Supreme Court the worst in the entire country.

There is, as far as I can see, only one other indicator as to how she will rule on these issues this early on: the list of major contributors during her 2010 campaign for the Michigan Supreme Court.

From it, one can see not only who wanted Kelly on the Supreme Court badly enough to pony up thousands of dollars to advance the cause. One can also get some sense of what those contributors may have hoped to see Kelly do once she got there.

That’s because Kelly’s major contributors were also major contributors to her colleague and running mate in the 2010 election, Justice Robert P. Young Jr.

Could Justice Kelly’s vote mirror that of Justice Robert P. Young ?

It is hard to believe any Justice can actually be more partisan or have a worse record on personal injury law- related matters than Justice Young. I’ve blogged extensively about Young’s obvious track record of voting against personal injury victims, and for that matter, ignoring precedent as well.

Justice Robert Young has cast votes that hurt personal injury victims in 77 percent of the cases he has participated in during his 11 years on the Michigan Supreme Court. His anti-victim bias covers all areas of personal injury law and is something well-known to all Michigan personal injury lawyers and members of the judiciary. It has also increased cynicism and disrespect for the Court, as lawyers believe political partisanship will trump precedent and the rule of law, at least as far as one vote seems to be concerned on personal injury cases based upon his track record:

o Young voted against car accident victims in 82 percent of cases.
o Young voted to deny relief to victims of governmental negligence in 82 percent of cases.
o Young voted against victims of unfair treatment by their employers in 78 percent of cases.
o In 76 percent of cases, Young voted against workers who had been injured on the job.
o Young voted to deny relief to patients who had been injured by doctors in 69 percent of cases.
o He voted against product liability victims 100 percent of the time.
o Young voted against premises liability victims in 79 percent of cases.
o And, he voted against construction accident victims 67 percent of the time.

Let’s hope that Justice Kelly’s judicial philosophy on personal injury law is not painfully similar — if not identical — to Young’s, based upon the identical list of contributors to her judicial campaign.

Some may wonder however, how the GOP and the auto insurance companies (after having spent a fortune to put Young on the Michigan Supreme Court), could not expect the same from Justice Kelly?

Let’s hope that things aren’t so simple, so predictable, so bought and sold. After all, Justice Kelly said the following in the Detroit Free Press when she asked former Michigan Gov. Jennifer Granholm to commute the life sentence of a woman convicted of murder: “Unfortunate cases such as this bring home the fact that our legal system is not perfect, as well that the appellate process does not cure each imperfection.”

– This blog post was written by Steven Gursten and Todd Berg

– Steven Gursten is recognized as one of the nation’s top personal injury attorneys in serious car and truck accident cases and automobile insurance No-Fault litigation. Michigan Auto Law has received the largest reported jury verdict for a car accident or truck accident lawsuit in Michigan in seven of the past 10 years, including 2010, according to published verdicts and settlements reports.

– Todd Berg is an Illinois attorney. At Michigan Auto Law, he provides analytical, research and writing support to the firm’s auto accident attorneys. Todd was formerly a trial and appellate attorney in Illinois. He was also a legal news reporter and editor with Michigan Lawyers Weekly.

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